The U.S. Court of Appeals for the Third Circuit recently reaffirmed its prediction that Pennsylvania state courts will ultimately adopt the Restatement (Third) of Torts — a move that would make it easier for manufacturers and retailers to defend themselves in personal injury lawsuits involving products that are not deemed defective.

In Covell v. Bell Sports, the Third Circuit held that a defendant in a products liability case may rely on evidence that a product satisfied the standards of the U.S. Consumer Product Safety Commission.  In this case, the plaintiff was riding his bike to work in January 2007 when he was struck by an automobile entering the parking lot of a school.  Covell’s parents settled their suit against the Archdiocese of Philadelphia and filed a second lawsuit against the manufacturer of their son’s bicycle helmet, alleging that it failed to minimize his injuries.  At trial, U.S. District Judge Paul Diamond instructed the jury under the Third Restatement and admitted evidence that the bicycle helmet at issue measured up to CPSC standards.

Under the Third Restatement, sellers are liable only for the sale of products that are “defective” and a product may qualify as “defective” if it meets one of three sets of criteria.  The criteria incorporate negligence concepts such as “foreseeable risk” and “care” directly into the definition of “defective.”  In Pennsylvania state courts, practice under the Restatement (Second) of Torts precludes evidence or use of negligence concepts in a products liability action. 

This decision reaffirms the Third Circuit’s 2009 ruling in Berrier v. Simplicity Manufacturing Inc., during which the court predicted that the Pennsylvania Supreme Court was prepared to abandon the Second Restatement of Torts and to adopt the Third Restatement.

Counsel for the plaintiff in the Covell litigation stated that he intends to ask the Third Circuit to rehear the case en banc because the ruling perpetuates a “two-tiered system of justice” in which Pennsylvania federal courts are applying the Third Restatement while the state courts continue to apply the Second Restatement. 

If you have questions about how this may impact your business, please contact a member of the Goldberg Segalla Product Liability Practice Group.